Last week the legal requirement to self-isolate if you test positive for Covid-19 came to an end.
This is a huge change, given that we have spent almost two years knowing that a positive Covid test meant isolation. For schools, it opens up some tricky legal questions on both pupil and staff policies.
Thankfully, there is useful guidance for schools that helps to bring some clarity to this situation and provides a legal basis for making decisions in light of the latest legal changes.
The new Covid guidance for schools
1. Can you refuse to accept a child into school who has tested positive for Covid?
As with any other infectious disease, such as chicken pox, schools have the right to refuse the entry of a pupil with Covid-19 (or Covid-19 symptoms) if they reasonably believe that this is necessary in order to protect the school community from possible infection.
This point is reflected in the Department for Education’s Schools’ Covid-19 operational guidance, which states: “If a parent or carer insists on a pupil attending your school where they have a confirmed or suspected case of Covid-19, you can take the decision to refuse the pupil if, in your reasonable judgement, it is necessary to protect other pupils and staff from possible infection with Covid-19”.
The UK Health Security Agency’s (UKHSA’s) Covid-19: people with Covid-19 and their contacts guidance also advises that “children and young people with Covid-19 should not attend their education setting while they are infectious”.
This message is further enforced in the DfE’s specific guidance for parents and carers, entitled What parents and carers need to know about early years providers, schools and colleges, which clearly instructs parents and carers not to send their child to school if they are showing Covid-19 symptoms or have received a positive test result.
In the same guidance, parents and carers are clearly informed that schools have the right to refuse entry to a child displaying Covid-19 symptoms.
Therefore, taking these points into account, schools should feel empowered to refuse entry to a child with Covid-19 (or symptoms) where this is deemed necessary to protect the school community from possible infection.
Of course, any decision to refuse a pupil entry to the school should be made in line with public health advice and the school’s own health and safety policies and risk assessments (which should be kept under regular review).
It is important to note that as the situation currently stands, schools will be required to provide remote education to pupils who have been refused access.
2. What do you do if a staff member tests positive but has no symptoms and wants to work?
With no legal requirement to self-isolate, a member of staff could have a positive test and attend school, although this would be in breach of the UKHSA guidance, Covid-19: people with Covid-19 and their contacts, which clearly states that if you have Covid you should not attend work.
The DfE’s Schools’ Covid-19 operational guidance refers directly to the Covid-19: people with Covid-19 and their contacts guidance.
Employers have a general duty to protect the health and safety of their employees and, on that basis, it is likely to be a reasonable management instruction to send a staff member home if the school has evidence of a positive test but the individual is in work or attempting to come to work.
It is always worth checking the employment contract to see whether there is a contractual right to require the employee to stay at home.
As arguably the staff member is “ready and willing” to work, they should be paid in the normal way if sent home.
Ideally, the staff member would be able to work from home but this is harder for teaching staff, although marking, curriculum planning and other activities to assist their colleagues working in school would seem possible.
Reducing or stopping pay is likely to lead to claims for breach of contract and, practically, it is likely to lead to staff not declaring a positive test result, so it would be, in our view, counterproductive.
If a school follows the government’s guidance and the decision making behind sending a staff member home was reasonable, non-discriminatory and handled sensitively, then it would be difficult to see the basis of a successful claim against a school.
We suggest that schools set out their expectations of staff, with references to the government guidance and internal policies (considering whether any amendments to policies are needed) in a clear communication.
The unions may support such an approach as part of ensuring general safety within the school environment, and so it may be possible to send a joint communication for more impact.
3. What happens if a staff member repeatedly says they have Covid-19 but no test to prove it?
Generally, employees can self-certify absence for the first seven days of absence, although, in theory, an employer is free to decide what evidence (medical or otherwise) they require from staff and when (although this should be clearly communicated, ideally in the sickness policy).
Requesting evidence is also more reasonable where contractual sick pay is available to staff. If an employee is unable to work then the school could request a fit note (for absences greater than seven days) in the usual way or evidence of a positive Covid test.
Covid tests will no longer be free and an employee may raise cost as the reason for not getting tested.
Schools could consider having a supply of tests to provide to employees or covering costs directly but there is no obligation on them to do so.
Tests are still free until 1 April so employees should be either able to obtain sufficient tests or to pay the cost, which is likely to be minimal.
Schools should bear in mind that health data is sensitive personal data for the purposes of General Data Protection Regulation (GDPR), so should be collected and stored (if necessary) in line with data protection legislation.
If a staff member is essentially malingering (or lying about the reason for their absence) then this could be a conduct issue and dealt with appropriately under the disciplinary policy.
Danielle Francombe and James Barratt are associates at national law firm Stone King
